The Law, Homosexuality And Conflict

February 26, 2006|By RODGER CITRON; Special to The Courant Rodger Citron is an assistant professor of law at Touro Law Center. He is a 1992 graduate of Yale Law School.

COVERING: THE HIDDEN ASSAULT ON OUR CIVIL RIGHTS

by Kenji Yoshino (Random House, 304 pp., $24.95)

Literature about the law generally fits into a familiar genre. There is popular fiction, such as the potboilers churned out by John Grisham and his ilk to be read on the beach. There is serious fiction -- for example, the elegant stories and novels by Louis Auchincloss in which the law often serves as an instrument of restraint. And there is academic scholarship: rigorous nonfiction about law and policy.

Kenji Yoshino's ``Covering: The Hidden Assault on Our Civil Rights'' is both serious and scholarly, but it transcends the conventions of the usual genres.

It is fitting that the form -- Yoshino combines a graceful memoir with a provocative and thoughtful discussion of civil rights law -- exemplifies what his book intends to accomplish: the integration of different voices in an effort to rethink the boundaries established by law and society with respect to race, gender and sexual orientation.

His memoir is elegant and evocative. Yoshino is a gay Asian-American who wrote poetry in college but decided to become a law professor. Along the way, he climbed the highest peaks of intellectual achievement: Harvard, Oxford on a Rhodes Scholarship, Yale Law School.

He returned to Yale as a professor just one year after his graduation and is now both tenured and deputy dean at the law school.

Yoshino is particularly insightful about the conflicted self. At the same time he mastered his studies, he struggled with his sexual orientation. At Oxford, he was so alienated from his homosexuality that he became depressed and prayed in the college chapel for conversion -- to be turned into a heterosexual, to no longer be gay.

The most affecting story Yoshino tells is not about himself, but a fellow Rhodes Scholar (``Arad'') who also wrestled with his homosexuality. Some time after both left Oxford, Arad committed suicide. At the funeral, Yoshino learned that, as a boy, Arad was caught in the broom closet at boarding school attempting to bleach his skin white.

``With some combination of relief and guilt,'' Yoshino writes, he realizes he himself is ``imperfect,'' and knows he is ``able to survive.''

Indeed, Yoshino comes to not only accept, but ultimately embrace, his homosexuality. Nevertheless, there are costs in deciding how to be out, and to whom.

He uses his own story, which charts the progression from feeling pressure to convert to hearing demands that he cover up his homosexuality, to illustrate the similar journey of the law with respect to the regulation of sexual orientation.

Even through the early 1970s, it was accepted medical practice for psychiatrists to attempt to convert gay patients on the grounds that homosexuality was an illness. Subsequently, homosexuality was accepted, but only if concealed (as in the military's policy of ``don't ask, don't tell'') or downplayed.

Although the principal focus of the book is on the ``covering'' demands made by society -- and approved by the law -- with respect to homosexuals, Yoshino also examines similar demands made on other groups, such as racial minorities and women with children in the workplace.

Where does this leave us today? Yoshino teaches law and admires the U.S. Supreme Court decision in Lawrence vs. Texas, which invalidated state laws criminalizing homosexuality. Ultimately, however, he does not embrace a litigation strategy to bring about equal protection under law for gays and other minorities.

He argues that the law has a limited reach. The better approach, he maintains, is conversation. A dialogue outside the courtroom is more likely to foster tolerance, if not acceptance, and to promote the understanding that, paradoxically, our differences are what we have in common -- that they define our humanity.

By telling his story, Yoshino has started the conversation he wants us to have.